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Employers know all too well that employees sometimes help themselves to documents the employer would like to keep confidential. This is precisely why many employers require employees to sign confidentiality agreements and often impose discipline, including termination, for taking confidential documents. But what if an employee who has filed a discrimination suit against his or her employer takes confidential documents to assist in the case? That is, can an employer subject an employee who engages in “self-help discovery” to discipline for taking confidential information?

Until the Massachusetts Supreme Judicial Court’s recent decision in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., there was a dearth of guidance on the issue of self-help discovery in Massachusetts. In Verdrager, however, the Court found that, under certain circumstances, an employee’s acts of “self-help discovery” may qualify as protected activity under the state’s antiretaliation statute. Striking a balance between “the employer’s recognized, legitimate need to maintain an orderly workplace and to protect confidential business and client information, and the equally compelling need of employees to be properly safeguarded against retaliatory actions,” the court decided that self-help discovery is permissible, “but only if the employee’s actions are reasonable in the totality of the circumstances.”

As for factors that inform the “reasonableness” inquiry, the Court recited the following nonexhaustive list of considerations:

Could the employee obtain the same material through the normal discovery process? An employee should not be able to obtain documents through self-help discovery that the employee would not be able to obtain through traditional discovery.

How did the employee come across the document? Employees who go on fishing expeditions are less likely to have acted reasonably than employees who stumble upon a relevant document in the performance of their duties.

Does the relevance of the document to the employee’s claims outweigh the disruption that the seizure of the document had on the employer’s day-to-day business? When assessing this factor, a court must consider the effect on the employer’s business as a whole, not merely the impact on an individual company representative.

Why did the employee copy the document instead of describing it to counsel so that the document could be the subject of an ordinary discovery request? Though the court did not elaborate on this factor, it could be that an employee who copies a document that might be destroyed or discarded pursuant to a document-retention policy or a document that was nearly incomprehensible to the individual employee acts reasonably. On the other hand, an employee who haphazardly copies documents that he or she thinks will be helpful to the case may be less likely to have acted reasonably.

To what extent did the employee share or publish the document? Sharing a document with counsel to assess the merits of a potential case could be reasonable, but sharing it with other employees who are not entitled to see the document in the ordinary performance of their duties is more likely unreasonable.

To what extent was the document confidential or protected from disclosure to the employee at issue? Did the employer actually take reasonable measures to protect the confidentiality of the document?

Did any applicable company policy require the employee to maintain the confidentiality of the document?

What countervailing interests—such as the remedial purposes of the anti-discrimination statute—apply? This analysis requires consideration of the legitimate interests of the employer and employee.

Notably, a document’s confidential nature and whether the document falls within the purview of a confidentiality agreement are only factors to consider in determining whether an act of self-help discovery is reasonable. Depending on how the other factors shake out, an employee may have engaged in statutorily protected activity even though he or she misappropriated confidential information and violated an enforceable restrictive covenant in the process of doing so. Only future cases will show how the courts ultimately will balance these confidentiality issues against the other factor.

Another question the decision in Verdrager left open is whether employers “may be held liable if they are found to have taken adverse action against an employee on the basis of her reasonable acts of self-help discovery, but are also found to have acted based on a good faith mistake of law that her actions were unreasonable and unprotected.” In other areas of the law (such as criminal law), a mistake of law generally is not a defense to otherwise illegal conduct. It remains to be seen whether employment law will be any different.

Verdrager opens the door to plaintiffs’ self-help discovery, subject to a loosely defined reasonableness analysis. Employers that wish to avoid being embroiled in litigation that will determine the contours of the inquiry should take proactive steps to limit the opportunity for self-help discovery. Depending on an employer’s resources and business needs, such steps may include saving confidential documents in password-protected locations accessible by a limited group of employees and using software that restricts an employee’s ability to download or print certain documents. As the adage goes, “an ounce of prevention is worth a pound of cure.”

Compare jurisdictions: Employment & Labor: International

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